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PETITIONER: V. KASTURI

       Vs.

RESPONDENT: MANAGING DIRECTOR, STATE BANK OF INDIA, BOMBAY & ANR.

DATE OF JUDGMENT:       09/10/1998

BENCH: S.B. MAJUMDAR, M JAGANNADHA RAO.

ACT:

HEADNOTE:

JUDGMENT: JUDGMENT S.B. Majamudar, J. Leave granted We have heard learned counsel for the parties finally in this appeal.  The short question involved in  this  appeal is:   whether the appellant - original writ petitioner before the High Court was entitled to get  the  benefit  of  pension scheme  available to the State Bank employees under the State Bank of India Employees Pension Fund  Rules  (for  short  the Rules).  The learned Single Judge of the High Court held that the appellant  was so entitled.  The Division Bench set aside the said decision and rejected the claim  of  the  appellant. In  order to highlight the grievance of the appellant in this appeal, it is necessary to note background skeletal facts. BACKGROUND SKELETAL FACTS: ------------------------- The appellant joined the  respondent  State  Bank  of India as  an  officer  on  22.10.1963.   In the year 1979 the respondent Bank framed the pension scheme under Regulation 45 of the State Bank of India Officer  (Determination  of  Terms and Conditions  of Service) Order of 1979.  The State Bank of India also had framed State Bank of India  Employees  Pension Fund  Rules  in exercise of powers conferred by Section 50 of the State Bank of India Act.  The appellant became  a  member of the said Fund as required of him while joining the service of the Bank.  He resigned from the Bank service on 31St July, 1984.  By that time he had completed 20 years and 9 months of pensionable service.    At  the time of his resignation which was treated as voluntary retirement, he was not  entitled  to get  pension  under  the  aforesaid  Rules as the eligibility requirement for earning pension as per Rule 22(1)(c)  of  the said  Rules  was  to the effect that the employee should have retired from Bank  service  after  25  years  of  pensionable service.  However, on account of various representations from the Bank employees the said eligibility condition was relaxed with  effect  from  20th September, 1986 whereby the original clause (c) rule 22(1) was  replaced  by  another  clause  (c) which  provided that an employee retiring after completion of 20 years of pensionable service irrespective of the age could get benefit of the pension scheme by his request in  writing.

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The  appellant’s contention before the respondent authorities was that though he had resigned on 31st July, 1984 as he  had already  completed  20  years  of pensionable service by that time the benefit of the amended provision of  Clause  (c)  of rule  22(1)  of  the Rules could be available to him at least prospectively from 20th September, 1986 i.e.  from  the  date on which amended provision came into force.  The said request was rejected by the respondent Bank authorities on the ground that the said amended provision which introduced anew pension scheme for covering the additional class of retiring employee on  completion of 20 years of pensionable service, instead of earlier requirement of 25 years of pensionable service, could not retrospectively apply in the case of  the  appellant  who had  resigned  and ceased to be a Bank employee more than two years prior to coming into  force  of  this  amended  pension scheme.   The  appellant thereafter carried the matter by way of a writ in the High Court of Judicature  at  Madras.    The learned  Single  Judge who heard the writ petition, following the Constitution Bench judgment of this Court in the case  of D S Nakara  &  Ors.    Vs.  Union of India, 1983 (1) SCC 305, held that the  appellant  was  entitled  to  the  benefit  of amended  provision  of  rule 22(1)(c) from the date of coming into operation of the said provision as he was  a  member  of the employees pension fund at the time when he ceased to be a Bank  employee  and he had already completed the requisite 20 years of pensionable service by  that  time.    the  Division Bench  of  the  High  Court  in  Writ  Appeal  moved  by  the respondent  Bank  took  a  contrary  view  and  came  to  the conclusion  that the amended provision of the rule introduced a new scheme  for  covering  entirely  a  district  class  of erstwhile employees who had retired from Bank service and the said  provision  could  not have any retrospective effect and could not cover the case of the  appellant  who  had  retired more  than  two  years  prior to the coming into force of the amended scheme of pension.  That  is  how  the  appellant  is before us in these proceedings. RIVAL CONTENTIONS: Learned   counsel  for  the  appellant,  Shri  N.G.R. Prasad, placing reliance on a number  of  decisions  of  this Court  and especially the constitution Bench decision of this court in Nakara’s case (Supra) vehemently contended that  the appellant  who  had completed 20 years of pensionable service at the time be retired after his resignation, formed the very same class of Bank employees who retired after completing  20 years  pensionable  service  and  hence  they  had  all to be treated uniformly; that pension was not a bounty  but  was  a reward  for meritorious past service and once the eligibility for earning the said pension after completion of 20 years  of pensionable  service became available to an employee, whether he retired at one point of time or other would not  make  any difference.   All  such  employees  formed  the  same  class. Hence, it was not open to the respondent authorities to  deny the appellant pensionary benefit only on the ground that when be  retired in 1984 after his resignation, even though he had completed 20 years of pensionable service by then,  the  then existing  pension  rules  did not render him eligible to earn pension, when subsequently the said rules  were  relaxed  for this  very  class  of  employees  with effect from September, 1986.  In this connection it was submitted that the appellant was not claiming any pension for the period from 1st  August, 1984  till 19th September, 1986 but at least from the date of which the amended provision came into force as the  appellant was alive by then he was entitled to proportionate pension at least from that date onwards to the extent of the pensionable service put in by him.  The denial of the said benefit to the

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appellant  was  purely arbitrary and unreasonable and was not justified on the touchstone of Article 14 of the Constitution of India.  He made it clear that he was not  challenging  the cut  off  date  fixed  by  the  respondent  authorities while amending sub-clause (c) of Rule 22(1) of the  pension  rules. All  that he submitted was that as the appellant falls in the same class of other Bank employees who had completed 20 years of  pensionable  service  by  the  time  of  retirement   the appellant  was  entitled to earn pension from 20th September, 1986 as he had survived on that date, his earlier  retirement notwithstanding. Learned senior  counsel  Shri  Anil B.  Divan for the respondent Bank  authorities  on  the  other  hand  submitted placing  reliance on a number of decisions of this Court that thee Constitution Bench Judgment of this  Court  in  Nakara’s case  (supra)  did not apply to the facts of the present case as the appellant was not a pensioner within the scheme of the pension when he resigned from Bank job on  31st  July,  1984. Consequently  subsequent  amendment  of  the  rule  after his retirement which extended the net  of  coverage  of  eligible pensioner  could  not apply to him as he was outside the said sweep of the amended provision when it  came  into  force  in September, 1986.    That  the  appellant cannot be said to be forming  the  same  class  of  eligible  pensioners  who  had completed  20 years of pensionable service on 20th September, 1986.  By his own violation he had opted out  from  the  Bank service two  years prior thereto.  That the amended provision would apply only to those Bank employees who had completed 20 years of pensionable service by 20th September, 1986 when the amended provision applied.  Consequently, the  claim  of  the appellant  was  rightly rejected by the Division Bench of the High Court. Point for consideration: ----------------------- In view  of  the  aforesaid  rival  contentions,  the following solitary point arise for our consideration: (1)Whether the appellant was entitled to get the benefit of amended Rule 22(1) (c) of the Rules from  20th  September, 1986 onwards? We shall examine this solitary point for determination in the light  of  the  rival contentions placed before us by learned counsel for the respective  parties  based  on  a  number  of decisions of this Court to which we will make reference at an appropriate place in the latter part of this judgment. The Pension Scheme before 20.09.1986: ----------------------------------- Before  we  proceed  to examine the rival contentions centering round this point, it will be necessary to note  the salient  features  of  the  pension scheme applicable to Bank employees at the relevant time when  the  appellant  resigned from  Bank  service  on  31st  July, 1984 and also the change brought about in  the  said  scheme  with  effect  from  20th September, 1986. The respondent Bank, as noted earlier, in exercise of its  powers  conferred  under Section 50 of the State Bank of India Act (23 of 1955), the Central Board of the  State  Bank of  India,  after consultation with the reserve Bank of India and with the previous sanction  of  the  Central  Government, framed   regulations  for  providing  for  establishment  and maintenance of pension fund for the benefit of its employees. The said pension fund was created in pursuance of clause  (o) of  sub-section  (2) of Section 50 of the State Bank of India Act, 1955.  The regulations so  framed  were  styled  as  the ’State Bank of India Employees’ Pension Fund Rules" which are being  referred  to  by  us  in this judgment as "the Rules’.

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Rule 1 thereof provided for constitution  of  a  fund  called "THE STATE  BANK OF INDIA EMPLOYEES’ PENSION FUND".  The said fund was deemed to have come  into  existence  on  1st  July, 1955.   It  is  not  in  dispute between the parties that the appellant when he joined the Bank service became a member  of the said  fund.    the  term "Member" is defined in Rule 2 to mean: "any  person  in the service of the Bank who has been admitted to the membership of the fund". Rule 7 of the Rule provide that:         " every permanent employee in  the  service  of  the         Bank  who  is entitled to pension benefits under the         terms & conditions of his  service  shall  become  a         member  of  the Fund from (a) the date from which he         is confirmed in the service of the Bank or  (b)  the         date  from  which  he  may  be  required to become a         member of the Fund under the terms and conditions of         his service." It is not in dispute between the  parties  that  the appellant  being  a  confirmed  permanent  employee became a member of the said Fund and he continued to be so  till  the date of his resignation from the Bank service. Rule 3 of the Rules provide that: "That trustees of the fund shall be the Director of the Bank for the time being and at every meeting of such trustees the Chairman  of  the  Bank shall be the Chairman of the meeting and in his  absence  one  of  the  Directors  not  being  an executive officer shall be elected Chairman of the meeting." Rule  8 lays down the criteria for ruling out employees from membership of the pension fund, the excluded  categories  of employees  are mentioned in sub-clauses (a) to (d) of Rule 8 who were not eligible to become members  of  the  fund.  The appellant  did not fall in any of these excluded categories. He, therefore, by the thrust of rule 7 became  a  member  of the pension fund. rule 9 sub-rule (1) lays down that:         "Subject  as  hereinafter  provided  every  employee         shall, as from the date  of  his  admission  to  the         fund,  contribute  to the fund every month an amount         equal to five per cent of his salary  subject  to  a         maximum provided therein". Sub-rule (2) thereof entitles the powers of the trustees  at their discretion to suspend the operation of sub-rule (1) or reduce  the  percentage  of the members’ contribution at any time in the case of any class or category of  employees  and for  such  period  as  they  shall  think  necessary  and to reimpose the contribution should they consider it  necessary but without  retrospective  effect.   As per sub-rule (3) of rule 9:         "Each  employee’s  contributions  to  the fund under         sub-rule (1) shall be credited in the books  of  the         fund  to  an  account in his name and a statement of         the account shall be supplied to him half-yearly".         Sub-rule (5) of Rule 9 provided that:         "In the event of member  retiring  from  the  Bank’s         service,  or in the event of a member dying, in each         case before such member has qualified for a  pension         there  shall  be  payable to him or, in the event of         his death, to the persons and in the manner named in         sub-rule (7) hereof, the amount of such member’s own         contributions with interest accused thereon".         Amended Rule 10 days down that:         "The Bank will subscribe monthly to the fund  a  sum         equal  to  ten per cent of the salary payable by the         Bank in respect of all employees who are members  of         the  fund. However, when an employee ceases to be in

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       pensionable  service  in  terms  of  Rule   20,   no         subscription will be made by the Bank for the period         of  such  service.  No amount subscribed by the Bank         shall be credited to the individual account  of  any         member". By rule 13 the trustees were  given  powers  to  invest  the moneys  of  the  fund or any portion thereof in stock, funds and securities in which a trustee is  authorized  to  invest trust money by any law for the time being in force.  Rule 15 provided that:         "...the retirement of all  other  employees  of  the         Bank  shall  be  subject  to  the  sanction  of  the         Executive Committee or  the  Local  Board  concerned         with employment...".         It also lay down that         "....any  officer  or other employee who shall leave         the service without sanction  as  required  by  this         rule  shall  forfeit  all  claims upon the funds for         pension".         Rule 17 lays down that:         "Pensions  shall  begin  to  accrue on the first day         succeeding that of retirement and shall  be  payable         monthly  to  the  beneficiary  personally  or to his         order...".         As per rule 18:         "Pensions  shall  in  each  case  be  debited to the         member’s account  in  the  fund  until  the  balance         thereof  is  exhausted and thereafter to the general         balance of the fund".         We may also in this  connection  refer  to  rule  26         which provides that:         "Every   employee   when   joining  the  fund  shall         subscribe an agreement in the following form:-            I hereby declare that I have read and  understood         the  Rules  of  the  State  Bank of India Employees,         Pension Fund and I hereby subscribe and agree to  be         bound by the said Rules.         Name in full.........         Date of Birth..............         Name of appointment.....................         Date of joining service.................. The  next  relevant  rule  is rule 22 which is required to be extracted hereunder in the form in which it  existed  at  the time  when  the appellant ceased to be a Bank employee on his resignation from Bank service on 31st July, 1984. Rule  22(1) sub-Rules (a) to (c) read as follows:         "22 (1) A member shall  be  entitled  to  a  pension         under  these  Rules  on  retiring  from  the  Bank’s         service-         (a)     after   having   completed   twenty   years’         pensionable service provided that  he  has  attained         the age of fifty years;         (b) after having completed twenty years’ pensionable         service, irrespective  of  the  age  he  shall  have         attained,   if   he   shall  satisfy  the  authority         competent to sanction  his  retirement  by  approved         medical   certificate   or   otherwise  that  he  is         incapacitated for further active service;         (c)   after twenty-five years pensionable service." CHANGES IN THE SCHEME AFTER 20.09.1986: -------------------------------------- Sub-rule (2) of Rule 22 is  not  relevant  for  our  present purpose.  Rule 22 sub-rule (1)(c) underwent a change and the revised  form  thereof with effect from 20th September, 1986 read as under:

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       "(c)    After   having   completed   twenty    years         pensionable  service,  irrespective  of  the age, he         shall have attained, at his request in writing.         (d)   After twenty five years pensionable service.         22(3)   A member who has been  permitted  to  retire         under   clause  1(c)  above  shall  be  entitled  to         proportionate pension." In other words, in clause (c), the  period  of  twenty  five years  stood  reduced to twenty years w.e.f. 20th September, 1986. Now  a mere look at the aforesaid relevant provisions of the rules shows that even though the appellant was a  member  of the pension Fund, when he ceased to be a Bank employee after 31st July, 1984 on his resignation from the Bank service, he was  not  entitled  to  pension as none of the conditions of rule 22(1) sub-Rules (a) to (c) then existing applied in his case.  Even though he had completed 20 years of  pensionable service  at  that  time  he  had  not attained the age of 50 years.  He was only 44 years of age.   Hence  rule  22(1)(a) did not  apply  in  his case.  Rule 22(1)(b) also was out of picture for him  as  he  had  not  retired  because  of  any incapacity.   He was in good health but for his own personal reasons he walked out of the Bank service at the age  of  44 years.   Then  remains only clause (c) of Rule 22(1) as then existing which laid down that if a member of  the  fund  who retired  from  bank  service  after  25 years of pensionable service could get entitlement for full pension to be charged on the said fund.  Thus as rule 22(1) stood  in  those  days when  the  appellant  resigned  from Bank service he was not eligible to earn any pension at all.  Once that happened, he could invoke the benefit of only Rule  9  sub-rule  (5)  and claim  the  amount of his own contributions remaining to the credit of his account in the fund with the interest  accrued thereon.   It is not in dispute that he did receive the said amount of his personal contribution  with  interest  accrued thereon.   As  the  situation then existed no further relief could have been given or was available to the appellant  and he  could  not  have  claimed  anymore amount from the fund. However, the appellant stakes his case for pension under the said scheme only on the basis of the amended rule  22(1)  by insertion  of  a  new  sub-rule  (c)  with  effect from 20th September, 1986.  It is also  not  in  dispute  between  the parties   that   the  said  amended  sub-clause  (c)  became operative only from 20th September, 1986 and that it had  no retrospective effect.    The  short  question is whether the appellant could stake his claim for pension  on  the  ground that he had completed 20 years of pensionable service by the time  he  ceased  to be a Bank employee in 1984, when he had survived till the amended clause (c) rule  22(1)  came  into force. For supporting the aforesaid claim of the appellant, learned  counsel for the appellant vehemently contended that all the  Bank  employees  who  had  completed  20  years  of meritorious pensionable service by the time of retirement or resignation  from  Bank service, would form one class and if that is so, the moment rule 22(1)(c) get amended the pension scheme which had already applied in the  case  of  appellant being  a member of the said scheme from the inception of his bank service can be said to be not a new scheme but  it  can be   said  to  be  conferment  of  an  additional  advantage available to all the members of the very same scheme and  if all  such pensioners similarly situated being members of the same class namely, employees retiring after having completed 20 years pensionable service, were  treated  differently  on the  specious  plea  that  only  those  who retire after the

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cut-off date of 20th September, 1986 would get  pension  and not  those  who  retired  earlier though having completed 20 years of  pensionable  service,  a  clear  case  of  hostile discrimination would   result.    Thee  employees  like  the appellant  who  had  retired  earlier  can  be  said  to  be arbitrarily  being  denied the benefit of the pension scheme which got further amended for the benefit of the  very  same class of  employees.    This  action on the part of the Bank would therefore, remain  violative  of  Article  14  of  the constitution of India. On  a  close  look of the relevant provisions of the Rules in is not possible to agree with this contention.  The appellant,  in  order  to  earn  pension  under  rule  22(1) sub-clause  (c)  as  amended  in  1986  has  to  satisfy the following twin conditions: i)At  the  time  when  the  amended   sub-clause   (c) applied  i.e.  from  22nd  September,  1986,  he should be a member of the pension fund: ii)He  should  have  by  then  completed  20  years  of pensionable  service,  and  should  have  pout  forward  his requisition in writing for availing the benefit of the  said provision. Unless both  these  conditions  are  satisfied  the  amended clause (c)  of rule 22(1) cannot apply in his case.  We have to note that the service bio-data of  the  appellant  contra indicates the applicability of those two conditions.  He was not a  member  of  the fund on 21st September, 1986.  He had ceased to be a member of the fund on his retirement in 1984. As laid down in the definition  of  the  term  "member"  the concerned  employee  should be in service of the Bank and he should have been admitted to the membership of the fund.  So far as the admission into the  membership  of  the  fund  is concerned,  the  appellant has not satisfied the requirement inasmuch as he was a member  of  the  fund  but  the  second requisition  of  the  definition was not fulfilled by him in 1986 as he was not in service of the Bank on 20th September, 1986 when  clause  22(1)(c)  as  amended  came  into  force. Consequently  the  first  condition for applicability of the amended clause (c) of rule 22(1) did not apply to the  facts of the   present   case.    Consequently,  the  question  of compliance of the  second  condition  that  he  should  have completed  20  years  of pensionable service would pale into insignificance as even though he had completed 20  years  of pensionable  service when he ceased to be a Bank employee in 1984 he did not come within the the beneficial sweep of rule 22(1) clause (c) as amended, as he was not a member  of  the pension  fund in 1986 as he had ceased to be a member of the fund after 31st July, 1984.  He was, therefore, out  of  the sweep  of  the  pension  fund scheme on 20th September, 1986 when rule 22(1)(c) got amended.  The very  opening  part  of rule  22(1)  lay  down  that  a member should be entitled to pension under the Rules if he satisfies the conditions  laid down  in  the  said  Rule  but  if he is not a member on the relevant date, the question of his being covered by  any  of the clauses of the said rule would not survive at all.  Thus on the very scheme of the Rules and the amended provision of sub-rule  (c)  of rule 22(1) the appellant’s case would fail and consequently he would  not  be  entitled  to  claim  any benefit   from   the   aforesaid   amended   provision  even prospectively from 20th September, 1986 as he was not at all covered by the said provision on that date. We may also note that the second requirement for the applicability of rule 22(1)(c)  as  amended  in  that  after having   completed  20  years  of  pensionable  service  the concerned member of the fund irrespective of age i.e.   even

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being  less  than  50 years of age can invoke the benefit of the said provision  by  making  a  request  in  writing  for getting propertionate pension.  Even if such request is made it is in the hands of the Executive Committee of the Central Board  of  the  Bank to accept such a request or not as seen from rule 15.  Any officer who leaves  the  service  without such  sanction  would  forfeit all the claims under the fund for pension.  Consequently occasion for an employee who is a member of the fund to make a request in writing to the  Bank for  getting  the  benefit  of  pension  scheme  as per rule 22(1)(c) as amended would arise provided  such  an  employee has  completed  20  years  of  pensionable  service  and has obtained the right under the amended sub-clause (c) of  rule 22(1) to make his request in writing.  Thus, even the second condition  for applicability of rule 22(1) sub-clause (c) as amended would presuppose that the concerned  member  of  the fund  having  completed  20  years  of  service must be in a position at the time of retirement to make  his  request  in writing  for  getting the benefit of the said provision such an mentality would arise only on and from the date on  which the said amended provision came into force.  Meaning thereby those  employees  like  the  appellant  who had ceased to be members prior to the said date and who might have  completed 20  years  of service in past will not be able to invoke the amended cause (c) rule 22(1) at any time after their earlier retirement.  Thus even the  second  condition  of  giving  a requisition  in  writing  would  not  be  available  to such employees like the appellant.  It  is  also  axiomatic  that when the appellant resigned on 31st July, 1984 at the age of 44  years  there  was  no  occasion for him to give any such written request for proportionate pension as in  those  days clause  (c)  in  amended  form  was  not available for being invoked by him.  The second condition for  applicability  of the  amended  clause  (c)  of  rule  22(1) must of necessity therefore, mean that only those employees who were even less than 50 years of age and  who  retired  on  and  after  20th September,   1986   having   then   completed  20  years  of pensionable service could invoke the said amended  provision by requesting  in  writing.  The appellant did not and could not comply with this second condition for  invoking  amended clause (c) of Rule 22(1). We  must  also  keep  in view rule 26 of the pension Rules which clearly shows that when a person enters the Bank service, he becomes a member of the fund and  agrees  to  be governed by  the  Rules  of  the  scheme.    He  becomes the beneficiary of the  trust  fund  if  he  satisfies  all  the requisite conditions  of  the  pension fund.  If he is not a beneficiary of the fund at the time when he retires,  as  it happened  in  the  case of the appellant in 1984, no benefit under the said scheme of the fund would be available to  him subsequently   as   he   will   be   out  of  the  class  of beneficiaries.  Consequently, no question of his being given any  discriminatory  treatment  vis-a-vis   other   existing beneficiaries under the scheme of the fund that were already in  Bank  service  as members of the fund on 20th September, 1986 when the beneficial  provisions  of  the  amended  rule 22(1)(c)   came   into  force,  would  at  all  survive  for consideration. For  all  these  reasons,  the  solitary  point  for consideration has to be answered against the appellant. However,  as learned counsel for the parties invited our attention to  number  of  decisions  of  this  Court  in support  of  their respective cases, we deem it fit to refer to them and consider their sweep. Learned  counsel  for  the appellant, at the outset,

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invited our attention to the Constitution Bench decision  of this Court in D.S.Nakara (supra).  The Constitution Bench in the  aforesaid  case,  speaking through D.A.Desai, J, had to consider the question of a cut-off date found in the pension scheme which was uniformly applicable  to  all  the  Central Government employees who had formed one class at the time of retirement and  who  were entitled to pension.  The question was whether amount of pension which was computed for them in the light of  available  formula  could  have  been  further enhanced  on  the  basis  of  a  subsequent  more beneficial formula and whether it could be denied only  on  the  ground that  they  had  retired  prior  to  the  date on which such enhanced computation of pension was made  available  to  the pensioners.  In the light of the aforesaid fact situation it was  observed  that  all  employees  governed by the pension scheme and had become eligible to earn pension at  the  time of their retirement formed one class.  It was held that such a cut off date for granting additional benefits to only some of  the  pensioners in the same class of employees could not be countenanced on the  touchstone  of  Article  14  of  the Constitution of India.  In para 8 of the report it was noted that the:         "Primary contention is that the  pensioners  of  the         Central  Government  form a class for the purpose of         pensionary  benefits  and   there   could   not   be         miniclassification  within  the  class designated as         pensioners...." A  question  was posed in para 9 of the report that can this class of pensioners further be divisible for the purpose  of entitlement’ and ’payment’ of pension into those who retired by certain  date and those who retired after that date.  The aforesaid decision cannot be of any  assistance  to  learned counsel  for the appellant on the facts of the present case. In nakara’s  case  admittedly  all  the  Central  Government servants  were  governed by pension scheme and were eligible to draw pension on retirement.  They therefore,  formed  one class.  In the facts of the present case, it is difficult to appreciate  how  the appellant can be said to be forming the same class of employees who came to be later on governed for the first time in  1986  by  the  pension  scheme  by  being conferred   the   benefit   of   newly   introduced  pension eligibility as per amended clause (c) of rule  22(1).    The new  class  of employees covered by it was consisting of all the then existing members of the fund who had  completed  20 years  of pensionable service and who could be below the age of 50 years at the time of their retirement as  the  earlier restriction  of  age  of  55 years as found in clause (a) of rule 22(1) was revised by re-enacting clause  (c).    It  is also  to  be  noted that earlier clause (a) gave retirees at the age of 50 years full pension.  And clause (c) sought  to give  retirees below 50 years only proportionate pension for the first time after September, 1986.   This  new  class  of employees  were  for the first time made eligible to get the benefit of pension scheme under rule 22(1).  Such pensionary benefit was not available to them prior to the amendment  of clause (c)  of  rule  22(1).   Hence, it was certainly a new pension scheme for them & not old wine in a new bottle.  for such class  of  employees  there  was  no  question  of  any miniclassification as for the entire class of such employees for  the  first  time the benefit of pension scheme was made available by  the  amendment.      The   decision   of   the Constitution   Bench  in  Nakara’s  case  therefore,  cannot advance the case of learned counsel for the appellant.    We may  also  mention  that  the  ratio  of  Nakara’s  case was distinguished by two later Constitution Bench  decisions  of

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this Court.    In  the  case of India Ex-Services League and Ors.  Vs.  Union of India & Ors.  1991(2) SCC 104,  a  later Constitution  Bench,  speaking through Verma, J, (as he then was) made the following pertinent observations in para 12 of the report:         "The liberalised pension scheme in  the  context  of         which  the  decision was rendered in Nakara provided         for computation  of  pension  according  to  a  more         liberal  formula  under  which  "average emoluments"         were determined  with  reference  to  the  last  ten         months’ salary instead of 36 months’ salary provided         earlier  yielding  a  higher average, coupled with a         slab  system  and  raising  the  ceiling  limit  for         pension.   This  Court  held  that where the mode of         computation  of  pension  is  liberalised   from   a         specified date, its benefit must be given not nearly         to  retirees  subsequent  to  the  date  but also to         earlier existing retirees irrespective of their date         of retirement even though the earlier retirees would         not  be  entitled  to  any  arrears  prior  to   the         specified   date   on   the  basis  of  the  revised         computation  made  according  to   the   liberalised         formula.   For  the  purpose  of  such  a scheme all         existing retirees irrespective of the date of  their         retirement,  were  held to constitute one class, any         further   division   within   that    class    being         impermissible.   According  to  that  decision,  the         pension of all earlier retirees was to be recomputed         as on the specified  date  in  accordance  with  the         liberalised  formula  of computation on the basis of         the average emoluments of each  retiree  payable  on         his date  of retirement.  For this purpose there was         no  revision  of  the  emoluments  of  the   earlier         retirees under  the  scheme.   It was clearly stated         that  if  the  pensioners  form   a   class,   their         computation cannot be by different formula affording         unequal  treatment  solely  on  the ground that some         retired earlier  and  some  retired  later’.    This         according  to  us  is  the decision in Nakara and no         more". In yet another later Constitution Bench judgment  of this Court in  the  case  of  Krishena Kumar etc.  etc.  Vs. Union of India & Ors.  1990 (4)  SCC  207,  K.N.Saikia,  J., speaking  for  the Constitution Bench distinguished Nakara’s case by holding that:         "In  Nakara  the  Court treated the pension retirees         only as a homogeneous class.  It was never held that         both the pension retirees and the PF retirees formed         a   homogeneous   class   and   that   any   further         classification  among  them  would  be  violative of         Article 14.  On the other  hand  the  court  clearly         observed that it was not dealing with the problem of         a "fund....." It  has  to  be kept in view that in the present case we are concerned with the pension fund and so far  as  the  pension fund  is  concerned  Nakara’s  judgment  by itself would not apply as clearly mentioned in the very same judgment in para 45 of the ruling in Nakara’s case (supra).  In para  45,  it has been observed that:         "Let us clear one misconception.  The pension scheme         including the liberalised scheme  available  to  the         government    employees   in   non-contributory   in         character.  It was not pointed  out  that  there  is         something like  a pension fund......  The payment of         pension is a statutory liability undertaken  by  the

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       Government  and  whatever becomes due and payable is         budgeted for. One could have appreciated  this  line         of  reasoning  where  there is a contributory scheme         and a pension  fund  from  which  alone  pension  is         disbursed.  That  being  not  the  case, there is no         question of pensioners  dividing  the  pension  fund         which,  if  more persons are admitted to the scheme,         would pro rata affect the share....". It becomes therefore, obvious that nakara’s judgement cannot be effectively pressed in service by learned counsel for the appellant on  the  facts of the present case.  It is also to be kept in view  that  in  the  present  case  we  are  also concerned  with  pension fund while in Nakara’s observations is out of the sweep of that decision.    Our  attention  was then  invited  by  learned  counsel for the appellant to two later decisions of this Court.  In the  case  of  All  India reserve Bank retired Officers Association & Ors.  Vs.  Union of India &  Anr.,  1992  Supp.  (1) SCC 664, A.M.  Ahmadi, J (as he then was),  spoke  for  the  Division  Bench  of  two learned Judges.  The case before this Court in the aforesaid decision  was  whether  the  cut-off date fixed for bringing into force the pension scheme which earlier  did  not  exist for  the  Bank  employees could be said to be discriminatory from any angle.  The  Court  while  distinguishing  Nakara’s ratio held that:         "Employees of the Reserve Bank of India were,  prior         to  the introduction of the pension scheme, enjoying         superannuation benefits comprising (i) CPF and  (ii)         gratuity.....".         The  pension scheme was being introduced for         the first time from the  cut-off  date.    In  these         circumstances, the employees who had retired earlier         when pension scheme was not available could not make         effective  grievance  in  connection with those of a         few other categories who retire latter when  pension         scheme  had  already  come  into  force. Ahmadi, J.,         speaking for the Court  in  the  aforesaid  decision         highlighted  the observations in Nakara’s case found         at page 333 para 46 to the following effect:         "....  the pension will have to be recomputed in the         light  of  the  formula  enacted  in the liberalised         pension scheme  and  effective  from  the  date  the         revised scheme comes into force.  And beware that it         is  not  a  new  scheme,  it  is  only a revision of         existing scheme.  It is not a new  retrial  benefit.         It is an upward revision of an existing benefit.  If         it  was a wholly new concept, a new retrial benefit,         one could have appreciated an  argument  that  those         who had already retired could not expect it." The  portion  mentioned  in  Nakara’s  case  clearly indicated that all  the  employees  in  Nakara’s  case  were governed  by  the existing scheme and were the recipients of retrial benefits.  It was an upward revision of the existing benefit that would in normal course be made available to all such beneficiaries of existing retrial  benefits.    On  the facts  of  the present case, as seen earlier, employees like the appellant who had retired  prior  to  the  amendment  of clause (c) of rule 22(1) were not recipients of any existing benefit of  pension.    They were in fact out of the pension scheme whatsoever being employees who had not  completed  50 years  of  age  even  though  they  had  completed  20 years pensionable service.    For  such  employees  there  was  no retrial  benefit till appropriate amendment of clause (c) of rule 22(1).  Consequently, the amended clause  (c)  must  be held  to  be  conferring  a  new  retrial  benefit  and  not

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enhancing the existing benefit  for  such  employees.    The aforesaid  decision  of  this Court in the All India Reserve Bank Retired Officers Association  case  (supra)  therefore, also  could  not  be  effectively  distinguished  by learned counsel for the appellant on the ground that  in  that  case there  was no pension scheme while in this case there was an existing pension scheme.  He then invited our attention to a decision of this Court in State of Punjab Vs.   Justice  S.S Dewan (Retired Chief  Justice)  & Ors.  1997(4) SCC 569.  In that case a  three  Judge  Bench  of  this  Court,  speaking through  Nanavati,  J.,  had to examine the question whether the pension scheme as  amended  on  22.2.1990  available  to introduction of a new retrial benefit or it only liberalised an existing  retrial  benefit.  In that case the question of computation of pension  of  judicial  officers  governed  by pension scheme   came  up  for  consideration.    Before  an amendment of the said  scheme  on  22.2.1990,  the  retiring judicial  officer  was  not  entitled for computation of his pension to club the period of practice  at  the  bar  before joining the judiciary with judicial service thereafter.  But by the amendment dated 22.2.90 the period of practice at the bar up to 10 years was thereafter permitted to be treated as part  of  qualifying  service  for computation of pension of judicial officers.  This  amendment  was  considered  to  be conferring  a  new  retrial benefit and was not held to be a liberalisation of  an  existing  benefit.    The  ratio   of Nakara’s  decision  was  distinguished  for  coming  to  the aforesaid conclusion.  It was held that:         "Conceptually, pension is a reward for past service.         It  is  determined on the basis of length of service         and last  pay  drawn.     Length   of   service   is         determinative  of  eligibility  and  the  quantum of         pension.  The Formula adopted for  determining  last         average  emoluments  drawn  has  an  impact  on  the         quantum of pension.  D.S.Nakara  case  involved  the         change of formula for determining average emoluments         and  it  was  treated  as  liberalisation  or upward         revision of the existing pension scheme.  On  parity         of  reasoning  it  can be said that any modification         with respect  to  the  other  determinative  factor,         namely,  qualifying service made with a view to make         it more beneficial in terms of  quantum  of  pension         can  also  be  regarded  as liberalisation or upward         revision of  the  existing  pension  scheme.     If,         however, the change is not confined to the period of         service  but extends or relates to a period anterior         to the joining of service, then it  would  assume  a         different character.    The it is not liberalisation         of the existing scheme but  introduction  of  a  new         retrial benefit". The aforesaid observations which were strongly  relied  upon by  learned  counsel for the appellant cannot be of any real assistance to him Reason is obvious.    If  an  employee  is already   covered   by  an  existing  scheme  and  the  main determinative factor for computation of his pension, at  the time  of  his  retirement,  undergoes  any modification with respect  to  the   other   determinative   factor,   namely, qualifying  service  then such a modification can be treated as elongation of the already accrued retirral benefit.    On the  facts of the present case, the said observations cannot be of any avail to the learned counsel for the appellant for the simple reason that when the appellant retired  in  1984, no  right had accrued to him to get pension from the fund as per rule 22(1)(c) as existing then.  He was not a  pensioner at all  when  he  retired.    Consequently,  any  subsequent

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amendment in the said pension scheme by which a new class of pensioners was brought in cannot be said to  be  enhancement of  a  prior  existing retrial benefit already earned by the concerned employee.  Effort made by learned counsel for  the appellant  by  submitting  that  in  the  present  case  the question is of in service experience and hence  observations in  the  aforesaid  case  help him cannot be of any avail as apart from the question of the consideration of  in  service experience  only or clubbing it with pre-service experience, the first  requirement  for  earning  the  said  benefit  of clubbing  would  be to postulate that the concerned employee becomes a pensioner at the time of his retirement.    If  he was  to  a  pensioner then he is out of the arena of contest for getting any enhanced rate of pension subsequently.   For him there  is no retiring pension at all.  Hence the further question of enhancing the said rates  in  further  does  not survive for him. Learned  counsel  for the appellant then invited our attention to a decision of this Court in Dhanraj & Ors.  Vs. State of J & K & Ors.  1998(4) SCC 30.  In the said case the question for consideration before the Bench of  two  learned Judges  of  this  Court  was  as to whether the employees of erstwhile State  of  Jammu  &  Kashmir  who  were  later  on absorbed by Jammu & Kashmir State Road Transport Corporation were  entitled  to  pensionary benefits in terms of GO dated 3.10.86  when  they  retired  from  the   service   of   the Corporation prior to 9.6.81.  Relying on the strength of the said Govt.    Order  it  was  held  by  this  Court that all erstwhile State employees would  form  one  class  and  were entitled to  get  the  benefit  of  the  Govt.   Order dated 3.10.86 even though they might have retired prior to  9.6.81 which  was  the  date  on  which  Article 177 of J & K Civil Services  Regulations   was   rendered   in   the   peculiar circumstances  of  its  own  case  and is based on the clear wordings of the Govt.  Order dated 3.10.86 by which  it  was mandate  to  give uniform treatment to all the retirees from Corporation who were earlier State Govt.   servants.    They formed one  and  same  class.    It  is  in the light of the aforesaid fact situation examined  by  this  Court  in  that Judgment  that  we have to appreciate the reasoning found in para 14 of the report on which strong reliance was placed by learned counsel for the appellant.   It  has  been  observed therein   that  even  otherwise  there  was  no  justifiable criteria for the State Government to draw the  line  between those  who  retired  earlier  and  those  who  retired after 9.6.81.  Both such set of employees were equally  placed  in the  same Undertaking/Corporation temporary in character and all having served in the  organisations  for  more  than  20 years.   These  observations  are  to  be appreciated in the light of the facts examined by this Court in this  decision. The  State of Jammu & Kashmir was dealing with the very same class of employees who were all ex-employees  of  the  State Govt.  who had subsequently been absorbed by the Corporation and thereafter  had retired.  As all of them formed the same class, the same treatment was required to be given  to  them in connection with the pensionary benefits made available by the State Govt.  The said decision cannot be of any avail to learned counsel for the appellant as in the present case the question  is  whether  any uniform treatment can be given to non-pensioners  like  the  appellant  as  is  given  to  the pensioners  who retired after the amendment of Rule 22(1)(c) which came into force from 20th September, 1986.   The  next decision on which reliance was placed by learned counsel for the appellant  is  in  the case of R.L.Marwaha Vs.  Union of India & Ors.  1987(4) SCC 31.  In this case a Bench  of  two

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learned    Judges    of    this   Court   speaking   through E.S.Venkataramaiah, J., (as he then was) had to consider the question whether the ex-government servants who were holding pensionable posts when absorbed by autonomous  bodies  could be  treated  differently  while granting benefit of counting their period of government service  as  part  of  qualifying service  for  computing  pension  when they retired from the autonomous body.  It was held on the facts of this case that the benefit of Govt.    Order  should  be  extended  to  all pensioners  who  had rendered service earlier in the Central Government and extra benefits given to the  pensioners  from the  date  of the OM could not be denied to those pensioners who had retired prior to the corning into operation  of  the said OM.  The aforesaid decision clearly indicates that once all  the  ex-government  servants who were pensioners formed the same class, then if extra benefit has  to  be  given  to these  pensioners  by subsequent Om then all such pensioners who were alive and available to receive the benefit  of  the Om  prospectively  could  not be denied the same only on the ground that some of them had retired earlier to the  OM  and others retired  thereafter.   this decision also proceeds on the  admitted  factual  position  that  all  the   erstwhile government  servants  were  pensioners  and were forming the same class and hence the were entitled  to  equal  treatment when  at  the  time  of  coming  into operation of the Govt. Order they were available to receive the benefit of the said Govt.  Order.  the ratio of the decision of the Constitution Bench in Nakara’s case would squarely get attracted  to  the fact  situation examined by this court in the aforesaid case but it cannot be of any avail to the appellant who  was  not included  in  the  very  same  class  of  pensioners who had retired from  Bank  service.     In   the   case   of   T.S. Thiruvengadam Vs.      Secretary  to  Government  of  India, Ministry of Finance, Department of expenditure, New Delhi  & Ors.   1993(2)  SCC  174,  on  which  reliance was placed by learned counsel for the appellant, the  fact  situation  was almost  similar  to the one which was examined by this Court in R.L.Marwaha  case  (supra).    In  that  case  also   the ex-Central Govt.    servants  were already having pensionary benefits  and  were  subsequently   absorbed   into   public undertakings.   The  question was whether any restriction on the applicability of the revised pensionary benefits to  the very  same  class  of  employees  from a given date could be sustained as fair and reasonable.  In this connection it was held by Kuldip Singh, J, speaking for the Division Bench  of two Judges of this Court that:         "The object of bringing into existence  the  revised         terms  and  conditions  in the memorandum dated June         16, 1967 was  to  protect  the  pensionary  benefits         which  the  Central  Government  servants had earned         before   their   absorption    into    the    public         undertakings.   Restricting the applicability of the         revised memorandum only to those  who  are  absorbed         after  the coming into force of the said memorandum,         would be defeating the very object  and  purpose  of         the revised defeating the very object and purpose of         the revised memorandum and contrary to fair play and         justice". Thus, the aforesaid decision shows that once all the ex-government  servants  were  forming  the  same  class  of pensioners  having  already  earned   pensionary   benefits, whenever  additional  pensionary  benefits  were  to be made available to the same class it should be made  available  to all  the  members  forming  the  same class whether they had retired earlier to 16th June, 1967  or  subsequent  thereto.

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This  judgment  also  falls  in  line  with the ratio of the decision in Nakara’s case which on the facts of the  present case,  as noted earlier, cannot be pressed in service by the appellant.  learned counsel for the appellant  then  invited our attention to a Judgment of two Judge Bench of this Court in M.C.Dhingra Vs.   Union of India & Ors.  1996(7) SCC 564. This Court in the said  decision  examined  a  similar  fact situation as was  found  in  T.    S.    Thiruvengadam  case (supra).  In that case an employee who was  serving  in  the State  service  was  subsequently selected as an employee of the Ministry  in  the  Central  government  service.     The question  was whether while computing the quantum of pension to be payable to him his earlier service in the State  could be clubbed  or  not.    The  Circular  issued by the Central Government conferring the benefit of such State  service  to only  retirees  after  the date of issuance of the circular, and not to the appellant before this Court who  had  retired earlier  to  the  issuance  of this circular, was held to be discriminatory if so interpreted.  It was held that  as  the appellant  was  already  fanning a part of the same class of pensioners additional benefit for computation of pension  on the  basis of the subsequent circular could not be denied to him as such denial would be arbitrary and fall foul  on  the touchstone of  Article 14 of the Constitution of India.  The ratio of Nakara’s case (supra) was pressed  in  service  for coming to  the  said  conclusion.   It becomes at once clear that the decision in the aforesaid case was rendered in  the light  of  the  fact  situation  wherein  the  appellant was already a pensioner who had retired from service and when he had survived during the time the  said  beneficial  circular came  into  force,  he had to be given the said benefit even though he had retired prior to  the  date  of  the  circular otherwise equals  would  be  treated in-equally.  As already seen earlier such is not the fact situation in  the  present case. We may now turn to two decisions of this Court which have  a  direct  bearing on the result of these proceedings. In the case of Commander, Head Quarter, Calcutta & Ors.  vs. Capt.  Biplabendra Chanda, 1997(1)SCC 208, a two Judge Bench of this Court had to examine the new/revised Rules which had reduced the requisite minimum qualifying service for earning pension while considering the  case  of  a  person  who  had retired  earlier and was ineligible to get pension under the Rules in force then.  This Court held that he could  not  be given  eligibility  for  pension  by  victual of the amended Rule.  In  the  said  case,  the  Bench  examined  the  fact situation  wherein  the claimant was a Commissioned Officer. He retired on 18.5.1982.  On the date of his retirement only 2/3rd of pre-commissioned service was allowed to be  counted towards  qualifying service for earning pensionary benefits. The pension Rules were amended with effect from 1.1.1986 and the full commissioned service was directed to be taken  into account for  working  out the qualifying service.  While the High Court allowed the writ petition based on Nakara’s  case (supra)   this   Court   held  that  Nakara’s  case  has  no application as the claimant  was  ineligible  for  grant  of pension  because  on  the  date of his retirement he did not possess  the  qualifying  service  as  per  the  Rules  then existing.   It  becomes  obvious,  therefore,  that when the person earlier retiring from service is not eligible to  get pension  as per the Rules, then if by subsequent prospective amendment of the Rules such class  of  persons  are  brought within  the  sweep  of  pension provisions, these provisions have to be treated as a new scheme of pension  which  cannot apply  to those employees who retired prior to the advent of

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such a new pension  scheme.    The  fact  situation  in  the present case  is  almost parallel.  We do not see any reason why the ratio of the said decision cannot be applied to  the present case. Shri  Divan,  learned   senior   counsel   for   the respondent also invited our attention to another decision of this Court in Govt.   of T.N.  & Anr.  Vs.  K.Jayaraman 1997 (9) SCC 606, wherein a Bench of two  Judges  of  this  Court presided  over  by  K.Ramaswamy, J, had to examine a similar question.  In that case the respondent at the  time  of  his retirement  was  not  eligible to get the benefit of pension scheme.  The pension Rules were subsequently  amended  after his retirement and as he had survived after the amendment of these  pension Rules he put forward his claim for pension at least from that date.  The Central Administrative  Tribunal, Madras  accepted  this  request  of  the  respondent.  While up-turning the decision of the  Tribunal,  this  Court  held that:         "      As per the pre-existing Rules, the government         servant  was  required  to  put  in  30   years   of         qualifying  service  for  pensionary  benefits.  The         Rules came to be amended by GOMs No. 1537 which came         to be  effective  from  13-11-1972.  It  was  stated         therein  that  the  Government,  may  by  giving him         notice of not less than three months in  writing  or         three  months’  pay  and  allowances in lieu of such         notice, after he has attained the age of fifty years         or after he  has  compeleted  twenty-five  years  of         qualifying  service  retire  any government servant.         Any government servant who has attained the  age  of         50 years or who has completed 25 years of qualifying         service  may  also  likewise  retire from service by         giving notice of  not  less  than  three  months  in         writing  to the appropriate authority. This rule has         come  into  force,   as   stated   earlier,   w.e.f.         13-11-1972...." It  was held that the respondent who had voluntarily retired prior thereto was not entitled to the benefit of the said rule.  The fact situation in the present case  also  in parallel  to the one examined by this Court in the aforesaid decision.  We may also lastly refer to  a  decision  of  two Judge Bench  of  this  Court  in  Union of India & Ors.  vs. Lieut (Mrs.) E.Lacts, 1997(7) SCC 334.  Sujata  Manohar,  J, in  that  case  examined liberalised pension scheme by which the group of employees who were earlier not covered  by  the pension scheme were conferred benefit from a given date.  As the respondent before the Court had already retired prior to that   date,  he  was  held  not  entitled  to  benefits  of liberalised pension  scheme.    It  was  held  that  such  a respondent  could  not  claim of discriminatory treatment in the grant of pension because  there  was  no  provision  for grant  of  pension  in  the  terms  and  conditions  of  her appointment which she had herself accepted.  The appellant’s case also falls in the same category  of  cases  which  were examined in  the  aforesaid  decision  by  this Court.  This decision also, therefore, goes in favour of  the  respondent and against the appellant. It  is  now  time  for  us  to  take  stock  of  the situation.  From the aforesaid resume of relevant  decisions of  this  Court spread over years to which our attention was invited by learned counsel for the respective  parties,  the following legal position clearly get projected. Category I --------- If the person retiring is eligible  for  pension  at

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the  time of his retirement and if he survives till the time by subsequent amendment of the relevant pension  scheme,  he would  become  eligible  to  get  enhanced  pension or would become eligible to get more pension as per the  new  formula of  computation  of pension subsequently brought into force, he would be entitled to  get  the  benefit  of  the  amended pension provision from the date of such order as he would be a  member  of  the  very  same  class of pensioners when the additional benefit is being conferred on all of  them.    In such  a  situation  the  additional benefit available to the same class of pensioners cannot be  denied  to  him  on  the ground  that  he  had retired prior to the date on which the aforesaid  additional  benefit  was  conferred  on  all  the members  of the same class of pensioners who had survived by the time the scheme granting  additional  benefit  to  these pensioners  came  into  force. The line of decisions tracing their roots to the ratio  of  nakara’s  case  (supra)  would cover this category of cases. Category II: ----------- However,   if   an  employee  at  the  time  of  his retirement is not eligible for earning  pension  and  stands outside   the   class  of  pensioners,  if  subsequently  by amendment of relevant pension Rules any beneficial  umbrella of  pension  scheme  is  extended  to  cover  a new class of pensioners and when such  a  subsequent  scheme  comes  into force  the erstwhile non-pensioner might have survived, then only if  such  extension  of  pension  scheme  to  erstwhile non-pensioners   is  expressly  made  retrospective  by  the authorities  promulgating   such   scheme;   the   erstwhile non-pensioner  who  has  retired prior to the advent of such extended pension scheme can claim  benefit  of  such  a  new extended pension  scheme.  If such new scheme is prospective only, old retirees non-pensioners cannot get the benefit  of such a  scheme  even  if they survive such new scheme.  They will remain outside its sweep.  the decisions of this  Court covering such second category of cases are:  Commander, Head Quarter, Calcutta & Ors.    Vs.   Capt.  Biplabendra Chanda, 1997(1) SCC 208 (supra 606 (supra) and others  to  which  we have made  a reference earlier.  If the claimant for pension benefits satisfactorily brings his  case  within  the  first category of cases he would be entitled to get the additional benefits  of  pension  computation  even  if  he  might have retired prior to enforcement of such  additional  beneficial provisions.   But if on the other hand the case of a retired employee falls in the second  category,  the  fact  that  he retired  prior to the relevant date of coming into operation of the new scheme, would disentitle him from getting such  a new benefit. The appellant falls in the second category of cases, Consequently, no fault can be found with the judgment of the Division Bench of the High Court non-suiting the appellant. In the result, this appeal fails and  is  dismissed. In the facts and circumstances of the case, there will be no order as to costs. [S.B.MAJMUDAR] [M.JAGANNADHA RAO] NEW DELHI. October 9, 1998.